Sen. Lindsey Graham (R-SC) plans to introduce a new national abortion ban Tuesday afternoon, the so-called “Pain Capable Unborn Children Protection from Late-Term Abortions Act.”
It’s a mouthful, brimming with language ripped from the anti-abortion movement. Fittingly, Graham will be flanked by “pro-life leaders” as he announces it, according to his office. It’s a 15 week gestational ban.
“Of course, this isn’t actually a ‘final’ abortion ban, so that term is a misnomer,” Jessie Hill, associate dean and professor at Case Western Reserve University School of Law, told TPM. “Pregnancy lasts about 40 weeks; 15 weeks is an early point in the second trimester.”
“He’s reinventing the English language with this idea,” added David Cohen, a professor at Drexel University’s Thomas R. Kline School of Law.
While the bill is a useful gauge to show how Republicans are positioning themselves on the issue, it has no chance of becoming law through the Democratic-majority Congress.
The bill includes exceptions for “situations involving rape, incest, or risks to the life and physical health of the mother,” Graham’s office said. It also “leaves in place state laws that are more protective of unborn life,” indicating that it would not replace more draconian bans in red states, but would hypothetically impose new restrictions in blue states.
In the medical world, “late term” is used to describe the end of a pregnancy; births can range from early term at around 37 weeks to late at around 41. The anti-abortion world has successfully hijacked the phrase to apply to much earlier abortions, implying that the procedure would be performed on a fetus virtually fully developed. The gambit goes hand in hand with the longstanding anti-abortion tradition of using images of very advanced fetuses in its signage and promotional material, even when the vast majority of abortions occur in the first trimester.
The notion of “fetal pain” is another popular one in anti-abortion circles and the legislation they advocate. the doctor consensus is that fetuses don’t develop the structures necessary to feel pain until the third trimester, well after Graham’s 15 weeks.
While Graham previously introduced 20-week federal bans, the 15-week legislation would move the line forward. He may be deriving the number from the dobbs case, where the Supreme Court upheld Mississippi’s 15-week pregnancy ban. He said it was “adjusted accordingly” after the Supreme Court decision.
“I think this is partly an attempt to paint Democrats as extremists on abortion by suggesting that they are in favor of ‘late’ abortion if they oppose the law, and perhaps also a calculation that the public will be less outraged by a 15-week abortion ban, which is certainly more protective of abortion access than outright abortion bans and six-week abortion bans in place in some states,” Hill said.
The timing of the introduction is surprising: just a couple of months before the midterm elections, in an environment in which Republicans are growing increasingly nervous about the electoral reaction, particularly from women, after the Supreme Court nullified 50 years of a constitutional right to abortion.
“The Republican party is really freaked out about the midterm elections because of what happened in Kansas and Alaska,” Cohen said.
In Kansas, voters handily defeated a ballot initiative that would have amended the state constitution to overturn abortion protections. The House race in Alaska was one of the few high-profile special elections Democrats won in recent months, and early data indicates energy from the ground up.
Senate Majority Leader Chuck Schumer (D-NY) opened his remarks in the room Tuesday with comments on upcoming legislation.
“Republicans are turning into pretzels calling for nationwide abortion bans when they said they would leave it up to the states,” he said. “Even the Senior Senator from South Carolina said a few months ago that ‘if the Supreme Court overrules roe v. calf‘ would mean that ‘each state will decide if abortion is legal and on what terms’. Yet here he is introducing a bill to restrict abortions nationwide.”
The abortion ban has no viable path to becoming law. With Schumer controlling the Senate calendar and votes, the only way he would let the bill get to the floor would be if he thought it would be politically advantageous.
“It’s never going to happen, at least not while Biden is president and you still have obstructions in the Senate, even if the Republicans take control of the House,” Cohen said. “Everything is political.”